The Defendant was charged with the offence of using an unlicensed vehicle contrary to ss. 52(1)(a) and 52(10)(a) of the Road Traffic Ordinance, Cap. 374 (‘the RTO’) and another offence. The facts were that the Defendant was seen sitting in the driver’s seat of the car with the headlights and reading light on; he bent down inside the car and looked outside from time to time; he switched off the headlights and alighted from and locked the car; and he walked towards the rear of the car.

The Defendant appealed against the conviction and sentence in relation to the offence of using an unlicensed vehicle. The Court of First Instance of the High Court (‘CFI’) judge allowed the appeal against conviction, on the basis that the word “use” in s. 52(1) of the RTO applied only to the driver of the vehicle and the driver’s employer where the driver was employed to drive for the employer’s affairs.

The Prosecution appealed against the CFI judge’s decision to the Court of Final Appeal.

Held, dismissing the Prosecution's appeal, that:

The well-settled approach to statutory construction requires the Court to construe the relevant language used in s. 52(1) of the RTO in the light of its context and purpose. By using two verbs “drive” and “use”, s. 52(1) contemplates different meanings to be attached to the two words.

To “drive” means to operate and control the course of a motor vehicle usually by sitting in the driver’s seat and directly operating the vehicle, usually (but not necessarily) with the engine running, so as to cause it to move, change direction and stop. Depending on the reason for stopping, a person may still be driving the vehicle when it is stopped.

To “use” a motor vehicle includes driving, but also embraces a wider range of activities. It means the activity of exercising a measure of control, management or operation over the vehicle as a means of transport, including any period of time between journeys. However, to “use” a vehicle imports something more active than merely being “in charge of”. The term “in charge of” is found in the RTO in the sections creating the offences of driving under the influence of alcohol or drugs.

Whether any particular activity constitutes “use” will depend on the evidence, and the circumstances to be taken into account will vary infinitely. Each case will be one of fact and degree depending on various factors in the evidence.

The word “use” can apply to different types of person, including the owner or lawful possessor of the vehicle or recent driver of it, or someone who is none of those but is sitting in the vehicle or otherwise involved in it. A person may “use” a vehicle vicariously through the agency of another person. However, this is limited to the employer of the person driving or actively using the vehicle if the driving or use is for the business of the employer.

Although the CFI judge reached the correct conclusion he had decided the case on the simplistic basis that the Defendant did not fall within the categories of “driver or his employer”. The CFI judge should have analysed the actions of the Defendant to determine if that activity amounted to using the vehicle within s. 52(1) of the RTO.

On the facts of this case, the Defendant’s actions did not amount to exercising a measure of control, management or operation over the motor vehicle as a means of transport, including any period of time between journeys, and therefore did not fall within s. 52(1) of the RTO.